Sierra Club v. United States Army Corps of Engineers

771 F.2d 409
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 28, 1985
DocketNo. 84-1960
StatusPublished
Cited by5 cases

This text of 771 F.2d 409 (Sierra Club v. United States Army Corps of Engineers) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Sierra Club v. United States Army Corps of Engineers, 771 F.2d 409 (8th Cir. 1985).

Opinion

BRIGHT, Senior Circuit Judge.

Sierra Club appeals from the district court’s order denying its motion for a preliminary injunction. Sierra Club seeks to prohibit the use of certain barge fleeting permits issued by the United States Army Corps of Engineers (Corps) to Naples Terminal Company (NTC) until the district court rules on the merits of Sierra Club’s claim that, in issuing the permits, the Corps failed to comply with section 102 of the National Environmental Policy Act of 1969, (NEPA), 42 U.S.C. § 4332, and the Corps’ own regulations. For the reasons set forth below, we vacate the district court’s order denying a preliminary injunction, and remand this action with directions to hold an expedited hearing on the merits of Sierra Club’s claim and enter a final judgment.

I. BACKGROUND.

The underlying dispute in this matter arose when NTC applied to the Corps for permits under section 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403, to construct facilities to fleet a large number of barges on a stretch of the Illinois River in the vicinity of Naples, Illinois. NTC operates a terminal at Naples which includes facilities for storing, transferring and transporting agricultural commodities and other products. Barge fleeting is the temporary parking of barges along the riverbank while they are waiting to be loaded or unloaded or towed. Fleeted [411]*411barges may be moored either to man-made structures set in the river or shore, or to natural objects such as trees.

Since 1976, NTC has had a permit from the Corps to fleet up to thirty barges (apparently using man-made structures on shore) over one mile of the river adjacent to its terminal. NTC has, in addition, engaged in the practice of mooring an unspecified number of additional barges by tying them to trees. To date, the Corps has not required NTC to obtain permits for the fleeting of barges when they are tied to trees.

The permits at issue here authorize NTC to install “deadmen” for use in mooring up to 353 barges along roughly six miles of the river. Deadmen are concrete blocks buried in the ground, from which an anchor or cable line is extended to a fleeted barge. The portion of the river directly affected by NTC’s project is situated south of Meredosia, Illinois, between the Meredosia National Wildlife Refuge and the Pike County Conservation District. According to Sierra Club, this environmentally sensitive stretch of river has a diverse and abundant fish community, including several game species. Important mussel beds inhabit the river bottom, and the riverine environment supports a wide variety of vertebrates, including a number of bird species that are on the Illinois state endangered and threatened species list. Sierra Club notes that the affected portion of the river receives a great deal of recreational use for fishing, hunting, boating, sightseeing, and wildlife observation.

Before granting the permits, the Corps prepared an environmental assessment (EA), discussing the potential environmental effects of NTC’s proposed project.1 The Corps concluded that issuance of the permits, with appropriate conditions and restrictions, would not significantly affect the quality of the human environment, and proceeded without preparing a more comprehensive environmental impact statement (EIS).2

The United States Fish and Wildlife Service, the Illinois Department of Conservation, and the United States Environmental Protection Agency submitted letters objecting to issuance of the permits on the basis of the EA. The agencies pointed to certain shortcomings and omissions in the document and recommended, in essence, that the proposed fleeting not be authorized until potentially adverse environmental effects were more thoroughly investigated.

The Corps nevertheless issued the barge fleeting permits without further evaluation on September 27, 1983. Thereafter, Sierra Club filed the present action for declaratory and injunctive relief alleging, inter alia, that the Corps had violated section 102(2)(C) of NEPA by granting the permits without preparing a detailed EIS despite indications that NTC’s project would have a significant impact on the environment, and had violated section 102(2)(E) of NEPA by issuing the permits without adequately [412]*412studying, developing, and describing appropriate alternatives to the proposed action. 42 U.S.C. §§ 4332(2)(C) and (E).3 Sierra Club filed a motion for summary judgment which the district court denied on May 8, 1984. While that motion was pending, Sierra Club filed the present request for preliminary injunctive relief.4 Following an evidentiary hearing, the district court entered an order denying the motion for a temporary injunction on June 7, 1984. This appeal followed.

II. DISCUSSION.

In Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109 (8th Cir.1981) (en banc), this court enunciated four factors district courts should weigh in considering requests for preliminary injunctive relief: “(1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will have on other parties litigant; (3) the possibility that movant will succeed on the merits; and (4) the public interest.” Id. at 113. In the present case, the district court evaluated Sierra Club’s motion for preliminary injunctive relief under the Dataphase factors — albeit in a somewhat conclusory fashion — and held that Sierra Club had failed to carry its burden of satisfying any of those factors.

Our review of a grant or denial of preliminary relief is limited to determining whether the district court abused its discretion. Harris v. United States, 745 F.2d 535, 536 (8th Cir.1984); Roberts v. Van Buren Public Schools, 731 F.2d 523, 526 (8th Cir.1984). Moreover, we are bound by the district court’s findings of fact unless they are clearly erroneous. See St. Jude Medical, Inc. v. CarboMedics, Inc., 764 F.2d 500, 501 (8th Cir.1985) (quoting Edudata Corp. v. Scientific Computers, Inc., 746 F.2d 429, 430 (8th Cir.1984)). The scope of our review in this case is therefore circumscribed, yet it must be based on careful consideration of the record before the court.

In the present case, however, the parties vigorously dispute the nature of the record properly before the district court and therefore the record properly before this court for review. Indeed, the parties have submitted two separate versions of the record on appeal. According to appellees, Sierra Club is attempting to litigate this appeal on the basis of documents it never put into evidence in the injunction proceedings.

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771 F.2d 409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sierra-club-v-united-states-army-corps-of-engineers-ca8-1985.